State of Washington v. Jennifer Leigh Wemhoff (Majority)
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FILED SEPTEMBER 20, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, v. JENNIFER L. WEMHOFF, Appellant. ) ) ) ) ) ) ) ) ) No. 38371-7-III UNPUBLISHED OPINION LAWRENCE-BERREY, A.C.J. — Jennifer Wemhoff appeals after pleading guilty to five felonies. We grant her request to remand for the trial court to correct a scrivener’s error. We deny her request to strike the community supervision fee. FACTS Jennifer Wemhoff pleaded guilty to two counts of first degree identity theft and three counts of first degree theft. She was sentenced to an exceptional sentence of 48 months of confinement followed by 12 months of community custody. Her judgment and sentence included a prior misdemeanor conviction for frequenting a drug house. The date of the crime was listed as December 6, 2011, and the date of sentencing was listed as February 21, 2021. No. 38371-7-III State v. Wemhoff At sentencing, the court noted: “It looks like we have fines and fees of $1,500[1] that are agreed to . . . . Is that the case?” Report of Proceedings at 50. Ms. Wemhoff’s attorney confirmed it was correct. Ms. Wemhoff’s judgment and sentence included the following legal financial obligations (LFOs): a $500 victim assessment, a $1,000 fine, and a $100 deoxyribonucleic acid collection fee, to be paid in installments of $50 or more per month. The court did not discuss or alter the standard provision of community custody that Ms. Wemhoff pay supervision fees. Ms. Wemhoff appeals. ANALYSIS DATE OF PREVIOUS MISDEMEANOR Ms. Wemhoff contends her judgment and sentence incorrectly lists the date of sentencing for a prior crime and requests that we remand so the trial court can correct its scrivener’s error. A scrivener’s error is a clerical mistake that, when amended, would correctly convey the trial court’s intention based on other evidence. State v. Davis, 160 Wn. App. 471, 478, 248 P.3d 121 (2011). The State concedes it was a scrivener’s error Ms. Wemhoff’s fines and fees actually total $1,600, which the judgment and sentence accurately reflects. 1 2 No. 38371-7-III State v. Wemhoff that should be corrected. We agree and remand for the trial court to correct the sentencing date of the December 2011 misdemeanor. IMPOSITION OF DISCRETIONARY LFOs Ms. Wemhoff contends the community custody supervision fees must be struck from her judgment and sentence. We disagree. “Unless waived by the court, as part of any term of community custody, the court shall order an offender to . . . [p]ay supervision fees as determined by the [Department of Corrections].” Former RCW 9.94A.703(2)(d) (2018). Because supervision fees are waivable, they are discretionary LFOs. State v. Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1119, review denied, 195 Wn.2d 1022, 464 P.3d 198 (2020). While a trial court cannot impose costs on indigent defendants under RCW 10.01.160(3), community custody supervision fees are not costs under RCW 10.01.160(2) and the sentencing court has discretion to impose such fees. State v. Spaulding, 15 Wn. App. 2d 526, 536-37, 476 P.3d 205 (2020). While the court did not specifically address the community custody supervision fees, it showed no intent to waive discretionary LFOs; indeed, it imposed a discretionary $1,000 fine. In the absence of any sign of the court’s intent to waive discretionary LFOs, the statutory default is that the court orders Ms. Wemhoff to pay her supervision fees. 3 No. 38371-7-111 State v. Wemhoff Former RCW 9.94A.703(2)(d). We therefore decline to order that the supervision fees be struck. Affirm convictions; remand for correction of scrivener's error. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. Lawrence-Berrey,.t WE CONCUR: Pennell, J. Staab, J. 4
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